Conefy v. Holland

• Decision Date: 02 March 1900
• Citation: 56 N.E. 701,175 Mass. 469
• Parties: CONEFY v. HOLLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 469

56 N.E. 701

CONEFY v. HOLLAND.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1900

COUNSEL

Jas.

L. Powers, for plaintiff.

John P Feeney, for defendant.

OPINION

BARKER, J.

The first reason alleged in the motion to dismiss--that the complaint in the district court was at some time continued nisi by that court--is not argued by the defendant. As complaints under Pub. St. c. 85, are now civil suits, the provisions of Pub. St. c. 212, § 26, do not apply to them, and there seems to be no good reason why they may not be continued as other civil causes. The suit was entered in the superior court, and the supplementary complaint filed on October 12, 1898. The bill of exceptions shows that the motion to dismiss in the superior court was not filed until some time during the jury trial, in September, 1899, which must be taken to have been after a general appearance for the defendant in that court. When the motion was filed, it was too late to object either to irregularities in the lower court or to the jurisdiction of that court. Prince v Gundaway, 157 Mass. 417, 32 N.E. 653, and cases cited. This distinguishes the case from Com. v. Maloney, 145 Mass. 205, 13 N.E. 482.

The other ground of the motion to dismiss is that the plaintiff is a minor, and has brought the proceedings in her own name and not by her next friend. The sole instance in which such proceedings seem by our Reports to have been brought by a next friend is the case of Sayles v. Fanning, 13 Gray, 538. In McCall v. Parker, 13 Metc. 372, the original complaint was brought by a minor herself, and the supplemental complaint made after the birth of the child was made by herself and by her next friend. It was argued for the defendants in a suit upon the bond that the plaintiff should have proceeded by her guardian or next friend, and not in her own name only. This contention is not specifically treated in the decision, which held that the bond could not be defended against as given under duress. This case is the only one in our Reports in which the question whether a minor complainant in such a proceeding should prosecute it by her next friend or guardian has been suggested, although, as in Davis v Carpenter, 172 Mass. 167, 51 N.E. 530, it not infrequently appears that the complainant is a minor. Under our present statute it is not necessary that the husband of the mother shall join with her in the complaint. Sullivan v. Kelly, 3 Allen, 148. No indorsement of the process is required in case the complainant removes from the commonwealth, Woodman v. Jarvis, 12 Gray, 190. The proceeding is an anomalous one, created and governed by statute. It was no doubt contemplated by the legislature that in cases arising...